Mommy, this commercial is making me thirsty…

This opinion was issued this week from the Sixth Circuit Court of Appeals. The plaintiffs are the parents of minor children, and the defendants are (among others) domestic manufacturers and importers of alcoholic beverages, including Anheuser-Busch, Inc. The claim: the defendants’ advertising is responsible for the illegal (underage) purchase of alcoholic beverages by minor children, and the plaintiffs’ children have been subject to these advertising campaigns.

Can you guess the needle that popped the plaintiffs’ balloon? Yep, standing. The “irreducible constitutional minimum of standing” comprises three requirements: injury in fact, causation, and redressability. The parents claimed two kinds of injury, economic injury and injury to their parental rights. As to the latter type of injury,

This Court is aware of no legal authority that would support restriction of a private party’s freedom of speech and expression under the theory that the expressed ideas interfere with a parent’s right to make decisions regarding their children’s upbringing. Parents have a right to make fundamental decisions about a child’s upbringing, but they have no legal right to prevent other private parties from attempting to influence their children.

The economic injury claim failed “principally because these plaintiffs have not alleged that their children have purchased any alcohol — that is, these plaintiffs have not alleged that they have suffered any economic injury. Therefore, the plaintiffs’ complaints do not allege a legal ‘injury in fact’ based on this theory.”

After gutting the plaintiffs’ case on standing’s “injury in fact” requirement, the court of appeals went on to point out the causation problem:

As the plaintiffs’ complaints acknowledge, laws in both forum states protect against the underage consumption of alcohol — both the sale of alcohol to and the purchase of alcohol by a minor are unquestionably illegal. Therefore, the causal connection between the defendants’ advertising and the plaintiffs’ alleged injuries is broken by the intervening criminal acts of the third-party sellers and the third-party, underage purchasers.

The case didn’t survive a Rule 12(b)(6) motion to dismiss. That’s not surprising (IMHO). As the court so eloquently put it:

[I]f outlawing the actual sale and purchase is insufficient to remedy the alleged injuries (which is the premise underlying the plaintiffs’ theories), then outlawing mere advertising must be insufficient as well. Consequently, the plaintiffs cannot demonstrate redressability. If these plaintiffs are convinced that alcohol advertising (i.e., First Amendment commercial speech) should be outlawed, then the means must be by legislation or constitutional amendment, not by judicial fiat.